Bar Tussles With A.G. Over Records

AUSTIN (CN) – The State Bar of Texas claims the state’s attorney general “failed to apply the proper legal standard” when he decided “certain sensitive State Bar personnel memorandums must be released to the public” under Texas open records laws.

The Bar sued Attorney General Greg Abbott in Travis County Court. The Bar says Julie Oliver, executive director of the Texas Coalition on Lawyer Accountability, requested “40 categories of information” from it in a May 25 letter. Oliver is not a party to the lawsuit. The Bar says most of the information was not in dispute and has been released, but some of it does not exist, or does not exist in the form requested. It sought a ruling from the attorney general that some of the information requested was exempt from disclosure under the Texas Public Information Act. The Bar received the attorney general’s ruling on Aug. 18. “Among other things, the decision concludes (1) that certain information prepared and held by the State Bar for the Commission for Lawyer Discipline is subject to the TPIA, as opposed to the rules of the Texas Supreme Court, and (2) that certain sensitive State Bar personnel memorandums must be released to the public,” according to the complaint. The Texas State Bar “is a public corporation and an administrative agency of the judicial department,” the complaint states. The Bar says The Texas Public Information Act (TPIA) applies to “governmental bodies” and because it is part of the judiciary when it “holds records on behalf of the judiciary or on behalf of an entity that is not subject to the TPIA, those records remain outside the purview of the TPIA.” Under the State Bar Act, however, most of the Bar’s records are subject to the TPIA, and the Bar does not dispute part of the attorney general’s decision that concludes that its proposed budget must be disclosed under state open record laws. “The State Bar, however, disagrees with respect to the information it creates and maintains for the Texas Commission on Commission for Lawyer Discipline because the Commission is part of the judiciary.” It also says the attorney general erred in concluding that the release of the requested personnel file would not be an invasion of privacy. The Bar cites previous litigation to argue that release of the memo should judged according to a “balancing of interests requirement.” “The document contains highly personal information about this employee’s private affairs that should be protected absent a demonstration by the requestor of the public’s interest in this information. The privacy interests of the employee outweigh any public value of the information, which is uncertain at best,” the Bar says. It adds: “In this situation, the employee at issue made a lateral change, with no change in pay or grade. The employee is in a position in which release of the information at issue could easily be misunderstood and would likely, as a result, be highly embarrassing. The very fact that the requestor sought information about ‘any demotion’ shows that the situation is already subject to such speculation. Release of the information would undermine the employee at issue and would undermine the State Bar’s interest in resolving sensitive employment issues.” The Bar says it is concerned not just with this particular memo but about “the need to apply a balancing test” under Texas law for similar personnel issues that could occur. “The State Bar is entitled to have the proper test applied so that this situation is not repeated,” the complaint states.It is represented by Jennifer Riggs with Riggs Aleshire & Ray.